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Circular 42/2009/tt-Bca: Detailing The Implementation Of Some Articles Of The Statute On Hold People Under Administrative Procedures

Original Language Title: Thông tư 42/2010/TT-BCA: Quy định chi tiết thi hành một số điều của Quy chế tạm giữ người theo thủ tục hành chính

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CIRCULAR detailing the implementation of a number of articles of the regulation of custody who follow politics _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ based Ordinance handling administrative violations in 2002; Ordinance amending and supplementing some articles of the Ordinance on handling administrative violations in 2008;
Pursuant to Decree No. 162/2004/ND-CP on 7/9/2004 of the Government issued regulations on the custody under administrative procedures; Decree No. 19/2009/ND-CP dated 19/02/2009 amending and supplementing some articles of the Statute the custody under administrative procedures attached to Decree No. 162/2004/ND-CP on 7/9/2004 of the Government;
Pursuant to Decree No. 77/2009/ND-CP dated 15/9/2009 regulating the functions, duties, powers and organizational structure of the Ministry of public security;
The Ministry of public security detailing the implementation of a number of articles of the regulation of custody who follow politics attached to Decree No. 162/2004/ND-CP on 7/9/2004 was amended and supplemented by Decree No. 19/2009/ND-CP dated 19/02/2009 as follows: article 1. The case was temporarily kept the administrative procedure under The custody of people according to the administrative procedure only applies in the following cases: 1. the need to prevent, suspend immediately the disturbing public order or cause injury to others are specified in point a of paragraph 2 article 2 the statutes of the custody under administrative procedures attached to Conference No. 162/2004/ND-CP on 7/9/2004 was amended and supplemented by Decree No. 19/2009/ND-CP (hereinafter referred to as the custody regulations under administrative procedures).
Disturbing public order are the serious violations of the provisions on security, public order, violate the General rules of community life and civilized lifestyle in public, if not prevent, suspend the right will cause adverse security secure social order, public place.
Acts causing injury to others including the behavior have been made or likely fact leads to the detriment of the health and safety of other people's body.
2. the need to gather, verify important details as a basis for the decision on handling administrative violations or ensure the handling of administrative violations.
The important details include the details in order to identify the violators themselves, the purpose, the nature and extent of the violation, the aggravation of administrative responsibility, mitigation and other relevant details directly to the handling of administrative violations and ensure for the handling of the breach.
3. The person arrested by the decision in search of competent person under the provisions of law handling administrative violations.
4. Should stop immediately these acts of domestic violence are specified in clause 2 article 2 law on the prevention of family violence in 2008.
5. Need to prevent family violence acts violate the decision prohibits exposure of the people's Committee Chairman granted the town under the provisions of article 12 of Decree 8/2009/ND-CP on 04/02/2009 detailing and guiding the implementation of some articles of the law on the prevention of family violence.
Article 2. The custody time limit according to administrative procedures 1. The duration of custody the following administrative procedures are not too 12 hours from the time of arrest violators. In case of need, the time limit of detention may last longer but also not too 24 hours as defined in paragraph 3 article 2 the statutes of the custody under administrative procedures.
For violations of the regulations or administrative violation border in the remote outback, mountain forests, Islands, the time limit of detention may be extended but also not so 48 hours from the time of start holding violators.
The duration of custody must be specified in the decision to detain people under the administrative procedure: how much time in custody; starting from hours to hours of your day, month and year of custody decisions.
In any case, the detention of people according to the administrative procedure must have the written decision of the competent person. Prohibiting the arbitrary detention of people without the written decision.
2. The time limit for custody as defined in paragraph 1 of this article is applied only in cases of real need, which are: the need to have more time to clarify the background verification, identity who violate and the important, complex related to the violation of the custody order as a base the decision handling administrative violations or to protect make sure for the handling of violations.
3. Upon expiry of the custody, the custody decision is a decision to terminate the right of custody to the custody; the decision to terminate the custody under administrative procedures must be recorded in the log book to track the person detained under administrative procedures according to the form attached to this circular and must have the signature of the person detained.
The content of the decision to terminate the custody under administrative procedures must specify the number of the decision, hour, minute, day, month, year of decision; name, rank, position, authority, units of the decision; to base the decision to terminate the detention, article, text of law clause applies; the reason for detention; they, the name, date of birth, place of birth, place of registered permanent residence, temporary residence, profession, place of work, learning, identity Paper number (if available) of the person in custody; they, the name of the father, mother or guardian of the person in custody (if a minor); nationality, passport number or passport replacement documents (if the person in custody are foreigners); the duration of custody, place of detention, the reason for the termination of the custody; start time ended their custody; signature, stamp the Agency's decision to terminate the detention. The decision to terminate the custody was established 2 a the same, given the expiration of a custody, a saved profile.
4. where the person detained under administrative procedure for denial, not to sign the decision of custody must proceed up the minutes or assigned to people who are directly the duty of conduct established thereon. The content thereon must specify hour, minute, day, month, year of record-setting venues; They name, position the set thereon; they, name, occupation, address, permanent address, place of work of the witness; they, the name, address, administrative violations of the person detained; the reason the person detained refuse to sign.
The minutes must be signed by the witness (if any), the person who set up the minutes and the custody decision under administrative procedures and must be saved to the custody record according to administrative procedures.
Article 3. The custody jurisdiction under the administrative procedures 1. The custody jurisdiction under the administrative procedure must be done in accordance with the provisions of article 7 of regulation of custody who follow politics. In the case of those with authority to detain people under the administrative procedure is absent, you can authorize deputies made the custody jurisdiction under the administrative procedures and authorisation must be made in writing.
2. the person authorized is not authorized for other people and must adhere to correct the provisions of the law on the custody of people according to the administrative procedures and must take responsibility for the decision to detain people under its administrative procedures before the Chief level and before the law.
Article 4. Affairs, received the person of administrative violations, the delivery person with administrative violations stipulates in article 8 the custody regulations under the administrative procedure shall be as follows: 1. The custody jurisdiction to establish traffic thereon, received the person of administrative violations with the Organization personal guidance, entertainment that violators to or assigned to people who are conducting the mission founded thereon, received. Report on the Affairs, received the person of administrative violations must specify hour, minute, day, month, year, location set thereon; they, the name, position and address of the individual, the Organization, the receiving party; they, the name, address, identity card or other identification of the violations; violations; time, location make violations; health status, attitudes of the violations, the exhibits, their assets (if any) and other details related to the delivery, get the violation; the case of witnesses, victims, they must specify the content that they are witness to, the damage by the person who has caused the violation; they, the name, the address of the witness, the victims. The minutes must be signed by the party, the receiving party and of the people there are violations, victims, witnesses (if any); who has the authority to detain people under the administrative procedure to sign the minutes, got the offense. The case of the infringement, victims, witnesses refused to sign the founding documents must specify the reason on the minutes.
Report on the Affairs, received the person of administrative violations must be established as two a the same and read for all participants sign the hearing thereon; party, Party Affairs each side holding a.
2. As soon as administrative violations are detected, prevented and set a record of violations or after establishment of the minutes delivered, received the person of administrative violations, if found to detain people under the procedure of the administrative authority the custody under administrative procedures must now decide the custody.
Not enough base case or not it is necessary to apply provisional measures to keep people under administrative procedures must be freed immediately and return them to that person of means, of property, papers (if available) for them if the means, of property, this paper was not applying interim measures keep exhibits means of administrative violations.
Article 5. The custody decision under administrative procedure decided custody who according to the administrative procedure prescribed in article 9 regulation of custody the following administrative procedures are as follows: 1. in case there is enough grounds and deems it necessary to adopt provisional measures to keep people under administrative procedure for people who had made violations of the law, the person who has the authority must now decide the custody under administrative procedures.

The custody decision under administrative procedures must specify: the number of the decision; hours, minutes, day, month, year of decision; they, name, rank, position, authority, units of the decision; to base custody decisions, articles, legal documents and terms to be applied; the reason for detention; they, the name, date of birth, place of birth, place of registered permanent residence, temporary residence, profession, place of work, learning, identity of the person detained; they, the name of the father, mother or guardian of the person in custody (if a minor); nationality, passport number or travel documents passport replacement value (if the person detained are foreigners); the duration of custody; the place of detention; appeal rights, accusations and claims regarding custody decisions and the implementation of the measures prescribed by law; signature, stamp of the agency decision of custody. The custody decision established two copies alike, the detained a a, a a save in the custody record.
2. In case the need to prolong the custody as specified in clause 2 2 of this circular shall, before the expiration of the custody record of decision, who has the authority to temporarily keep the decision to extend the custody. The content of decision must clearly decide, hour, minute, day, month, year of decision, basing decisions, articles, legal documents and terms to be applied; they, the names, positions, ranks, units of agency decision; they, the name, address, identification number of the people who were the extension of custody; the place of detention; the reason, the time limit for the extension of custody; the right to complain, report, sue for the decision to extend the custody of persons detained under the provisions of the law and sign, stamp of the agency decision. The decision to extend the term of custody must be established as two, a custody records, a copy of the custody.
3. where not all the time limit stated in the decision of custody, but were investigating, verifying the clarification, there is sufficient basis to conclude and render the violation of custody decisions people have to make a decision to terminate immediately the detention of people according to the administrative procedure, the detention was a , a custody records and must log to track the administrative custody. The content of decision ended their custody who follow administrative procedures must specify the number of the decision, hour, minute, day, month, year of decision, basing the decision; they, the names, positions, ranks, units of agency decision; they, the name, address, identity card or passport or other papers whose value replacing the passport of the person be terminated the custody; the reason for termination of the custody, article, clause laws apply and sign, stamp the Agency under the provisions of the law.
4. When there is evidence that violations of the laws of the people detained under administrative procedures of criminal signs, then the decision to immediately transfer custody of records and the Babysitting is temporarily attached exhibits, the media breached (if any) to the body conducting the criminal proceedings has the authority to resolve under the provisions of the law.
Article 6. Announcing the decision to temporarily keep The custody decision notice people according to the administrative procedures for the family, organization, place of work or study of the custody provisions of article 10 regulation of custody the following administrative procedures are as follows: 1. At the request of the person detained and depending on each particular case , immediately after the decision of custody, the custody decisions are notified by text, telephone, fax or other means other information about deciding the custody under administrative procedure for the family, the workplace, learning of the people detained said. If due to objective reasons which can not be informed they must tell the person with custody and log to track the administrative custody.
2. In the case of detention juveniles administrative violations at night (from 22 to 5 am the next day) or hold them over 6 hours, the decision of custody must notify parents or guardians of they know. The case did not identify the father, mother, guardian or because of objective reasons which can not be reported immediately to the person detained to know and must specify the reason on as people detained.
3. where the detained person is a foreigner, the decision of custody must immediately report to the heads of the competent superior bodies know to inform the Ministry of Foreign Affairs (the northern provinces to notify Consular Bureau, the southern provinces to notify Foreign Affairs Department of Ho Chi Minh City) to inform the diplomatic missions or consulates of the countries that the person is a citizen; at the same time, in cooperation with the Foreign Ministry to arrange for representatives of diplomatic missions or consulates of countries that met the consular visits if required and coordinate the handling of other foreign issues are concerned.
Article 7. Where the custody under administrative procedure Where the custody under administrative procedures be made according to the provisions of article 11 of the custody regulations according to the administrative procedure, in particular as follows: 1. place the custody under administrative procedure is the administrative detention or administrative detention Chamber is arranged at the Agency headquarters unit of work, who have the authority to decide the custody under administrative procedures. The absence of home detention or administrative detention, the Administrative Chamber can hold in the room or room Board directly at the workplace, but must ensure that the common rules.
Home administrative custody or administrative detention Chamber should have locked the door, ensure that the light, airy, hygiene and fire safety, fire, convenient to the look, protect. People detained overnight must be arranged the bed or the floor is located and must have passports, blankets, curtains; the seat lies at a minimum for each person is 2m2.
2. The Agency has the function prevention of violation of the laws often are administrative offenders custody need to layout, design, construction of administrative detention or administrative detention Chamber, which takes the place of custody for the audience of minors, women or foreigners and must have officers dedicated, managed, protected.
Forms, the scale of the place of custody administrative offenders must base on the nature, characteristics, conditions, the flow of people detained, the actual requirements of the custody administrative offenders in each geographical sector industry specific to the layout, design, build to suit.
Article 8. Diet, drink, activities and management of the detained diet, drink for people detained under the procedure specified in article 14 regulation of custody the following administrative procedures are as follows: 1. All expenses for the food, drink, activities of the person in custody and care treatment when they are sick or funeral costs money when people were dying in custody hold time is due to people detained or their family responsibility. In the case of the person detained or the families who hold no self-assurance, agencies, units of the people who have the custody decision is responsible for guaranteed, are taken from the Agency's funding, the authority custody.
Agencies, units of the detention authority to have the books follow the management and use of funds for people detained under the provisions of paragraph 4 of this Article in accordance with the provisions of the current financial regime.
2. The following cases are considered to be the person detained or the families who hold no guarantees are the costs: a) the person detained or their families do not have the money or property;
b) family, relatives of the detained person leaving custody;
c) Who is temporarily holding the object is not to determine the place of residence, did not identify the family or no family, relatives; family, relatives of persons detained in communal way where the custody, there is no condition to nourish, replenish, care of people detained or without conditions ensuring the buried person detained died in custody time.
3. Diet, drink, activities of the person detained.
The quantitative standards about diet, drink, activities of the person in custody be taken according to the provisions in clause 2 article 14 temporary regulations to keep people under administrative procedures and should note the following points: a) feed, drinking water for people detained to ensure hygiene standards , and food safety.
b) where the health status of the person detained is not guaranteed, as directed by the doctor should have diet, drink better then the custody authority may decide to increase the diet of people detained;
c) case of detained overnight, the person detained was borrowed blankets, projectors, screens. The case of the person detained is females may be granted an additional funds to buy the necessary goods for women hygiene.
Officers direct the managers who were responsible for custody instructions, request the custody warrant keeping utensils borrowed; the organization recovered and preserved the property loan when the person detained was the termination of the term of custody. If the person detained to damage, loss of the gadgets have borrowed to compensate according to the provisions of the law. The case of the detained are the object specified in point a of paragraph 2 of this Article that damaging, to lose the gadgets loaned were direct management officers who hold to set the minutes, stating the reason is lost or damaged, report the authority to take measures to handle the suit.
4. the detention unit, the Agency may decide to swap food weight prescribed in clause 2 article 14 temporary regulations to keep people under administrative procedures in accordance with reality and the taste of the person detained to ensure they are all standard. The quantitative food swap was done at the suggestion of the person detained.
5. mode for people detained is sick or dying during custody is made according to the provisions of article 15 temporary rules keep people who follow politics; In addition, should note the following points:

a) case of the detained are ill then the custody unit, authorities must take measures to treat for them; cases of seriously ill have to put away an emergency then all the possibilities and conditions can, agencies, units of the custody must be urgently organized take them to medical facilities by State or private place closest to the emergency treatment. When putting the person detained to the treatment facility to set the minutes and clearly about time to visit, healing, disease status of the custody and other related matters; the minutes must be signed (specify, name or index) for the custody, detention authority and representative basis where examination and treatment. At the same time, to notify the family, their relatives know to to take care of. The case of relatives, family petition please they have brought home to take care of and deems it is not really necessary to continue the custody jurisdiction the custody decision ended their custody who follow politics and tell them about family to heal. Prior to the custody of the competent custody must set the minutes. The minutes must show clearly the health status of people detained at the time of the decision to terminate the custody under administrative procedures and other related issues such as property, vehicles, money, papers, etc. of the person detained; the case of money or property to send person's custody custody lost, lost, damaged, corrupted, the place where custody is responsible for compensation; the minutes must be signed (specify, name or index) of the person detained (or family, their relatives) and authorized person's custody. The case of the detained have no fixed residence, do not have families, their loved ones far away is not up to to care or denial of care, then the competent person must hold the layout directly to the place of treatment for detained persons to care, manage them.
b) case of the detained died in custody time, then the competent person must do the custody work:-protection organization, notify the investigating agencies, the Procurator has the competence as well as superior leadership to resolve in accordance with the law; at the same time, inform the family of the deceased, relatives said.
-Work closely with the investigating agencies, Procuracy as well as relevant agencies to investigate, clarify the cause of death of the person in custody; provide the full document, relevant information at the request of the competent authority.
-The case of the detained alien is dead, decide the custody must immediately report to the heads of the competent superior bodies know, to notify the Ministry of Foreign Affairs (the northern provinces to notify Consular Bureau, the southern provinces to notify Foreign Affairs Department of Ho Chi Minh City) or the competent State Agency the Agency, in cooperation with the diplomatic or consular representative of the country that the dead have citizenship, to resolve.
6. About the buried dead people to note: a) When investigating authorities and procuratorate system for allowing the burial, the dead man's family is responsible for organizing funeral, burial for the dead. Authority the custody officer can help support the family, relatives of people killed during the burial if they have recommendations.
b) where the deceased had no family, relative or not to determine the residence of the dead person to contact his family, the relatives interred them by the Agency, where the custody units in coordination with local authorities where the custody settlement. The buried the dead must be conducted carefully, seriously and ensured in accordance with the provisions of the law on the procedure of opening and the sanitation requirements.
c) where foreigners are detained died, the funeral, burial to be addressed under the international treaties to which Vietnam is a member, or by the direct agreements about each particular case between the State of Vietnam and the country have detained people die.
Case of respective treaties or between State and Vietnam have detained people die not uniform agreement is about each specific case or did not identify the nationalities of the dead, the funeral, burial to be applied according to point b paragraph 5 of this Article.
d) costs for the Organization of the buried, buried the dead in the case prescribed in clause 2 article 8 to this circular by the State budget, including: a wooden coffin, usually a long pants, a long sleeve shirt, 04 m shroud, wine or alcohol to clean when stitch correctly; incense, flowers, candles and a practical, reasonable expenses for the Organization of the buried under the provisions of the law.
DD) Organization of burial by the Agency, the unit where the custody proceeding must be described by the minutes, has video recording or photographic records.
Article 9. Books, records of the work of the custody under administrative procedure profile about the custody work, monitor the custody of people according to the procedure specified in article 16 of the regulations on the custody under administrative procedures are as follows: 1. hold the monitor books people according to administrative procedures : record the issues related to the custody must be recorded in the log book to track the full custody (form attached to this circular).
2. The record of the detention the following administrative procedures When the custody of people, who have the authority to set up detention records to monitor, which is updated, documented, kept fully and specifically the issues related to the custody. Custody record includes the following documents: report on administrative violations, report delivery, get the person who has administrative violations, the decision to detain people under the administrative procedure, the decision to extend the detention, decides to terminate the custody under administrative procedures and other documents relevant to the person detained. The documents in the record must be numbered and must close on the cover profile.
3. On preserving books, records of the custody under administrative procedures, profile books about the work of custody must be preserved carefully and strictly according to the provisions of the law on management mode, security, retention of records. Prohibiting the arbitrarily erased, corrected, changed the content or torn, burned books, records of custody.
Article 10. Funding secured for the adoption of interim measures to keep people under administrative procedures 1. Funding secured for the adoption of interim measures to keep people according to the administrative procedure prescribed in article 6 of the regulation the custody under administrative procedures including: a) the funding for the establishment of the records, books and serve the implementation of the measures of custody who follow administrative procedures;
b) funding for the construction, repair, upgrade the facilities where custody, utensils, shopping facilities for the detention;
c) funding for the food, drink, treatment for detained persons; organize buried when they died in custody time for cases of people detained or their families does not guarantee;
d) funds for other expenses to serve the detention of person under administrative procedures include: medicines, hospital charges, detention care is ill or money held burial when the death of custody, in case of detention or their families cannot be guaranteed; the cost for the verification, clarification of the relatives of the detained.
2. the secured funding for the implementation of the measures of custody who follow politics because of State budget levels, arranged in the estimation of annual budgets of agencies, units of the competent custody administrative offenders.
The regular budget provisions for the implementation of the measures of custody the following administrative procedures are conducted as follows: a) annually, agencies, units of the competent person who custody under administrative procedures based on the mission requirements of the custody under administrative procedures , is responsible for estimating the secured funding for the implementation of the custody under administrative procedures with the establishment of the State budget estimates in the range of functions, duties, jurisdiction is allocated, the report estimates cost the Agency management unit supervisor.
b) on the basis of expenditure estimates reporting agencies, units of the competent person who custody under administrative procedures, agency management unit supervisor General, estimating the overall funding to secure the implementation of the custody under administrative procedures , the leader of the authority to review the decision.
c) to manage, allocate, use, the stick, settlement funding secured for the application of interim measures to keep people under administrative procedures from State budget must comply with the provisions of the law on the State budget and other documents guiding the implementation.
Article 11. Effective enforcement of this circular are effective from November 20, 2010 and replaces circular 07/2007/TT-BCA on 15/11/2007 of the Ministry of public security guiding the implementation of some articles of the Statute the custody under administrative procedures attached to Decree No. 162/2004/ND-CP on 7/9/2004 of the Government.
Article 12. Implementation 1. Recommended ministries: Minister of Defense, finance, industry and trade, agriculture and rural development, transport and the President of the people's Committee of the central cities, based on the requirements and the actual situation in the prevention, combating administrative violations in the field, by themselves in charge specific guidelines, implementing and directing, inspecting the implementation of custody according to the rules of administrative procedure, the text of relevant laws on the custody of people according to the administrative procedures and guidelines in this circular.

2. General Director of the General Security Bureau I, II security, crime prevention, police the police administration of order, social security, logistics and engineering, criminal enforcement police and judicial support, Bureau of finance, Director of the public security Department, central cities , Director of the fire police, fire and rescue, in the scope of its powers, functions are responsible for organizing and directing, guiding, inspecting the implementation of this circular.
In the process of implementation, if any problems arise, the Agency, the relevant units should reflect on the Ministry of public security (through Service legislation) in order to have timely instructions.